All sorts of factors will have an impact on these questions of design; our concern here is not so much the design as such, but the design process.

An important element is the history and culture of the particular country. Some countries— even some regions—start from assumptions about how the process will be done. Latin American countries often use constituent assemblies. French West African countries have often used constitutional conferences. Nigeria generally uses a commission followed by an assembly of some sort—a model used also in East Africa.

When most countries approach the matter of designing a constitution-making process, they are in crisis—or at least in a situation of some tension within society. A government department is not making decisions about the process in a detached, technical way. It is likely that the details of the process will have to be negotiated among political parties, or between previously warring groups (or even still-warring groups), which may be a long, drawn-out process. On the other hand, there may be such pressure to start the process, and such a sense that something serious will happen if there is delay, that decisions about the process are made in a hurry. It is impossible to dictate the right way to design the process; that depends on individual countries and their circumstances.

It may be useful to note how some countries have done this. In South Africa [1996] the process for making the final constitution was set out in the interim constitution. This was itself the product of negotiations among the main political parties, and it seems to have worked well for that country. The parties had great legitimacy in the eyes of the people. But in some countries, the parties may be an element of the dispute that generated the desire for a new constitution. In Kenya the outlines for a process were drawn up at a national conference that involved not only political parties but civil society. In Nepal the parties tried to keep hold of the design process. In these countries certain groups within society, especially ethnic groups, kept forcing their agendas upon the parties. Because the parties were not inclined to take these groups seriously, the groups resorted to violence or disruption. Then the government would reluctantly listen and perhaps make some agreement about the process—usually about the system of representation in the constituent assembly. This was a very flawed, and protracted, design process.

In many countries the occasion for reform has been a sense of exclusion on the part of some sections of society. If the constitution is thought of as a remedy for this problem, it naturallymakes sense for the constitution-making process to be inclusive. This is what many groups in Nepal were pressing for. There is now a good deal of writing about the need for peace negotiations to be inclusive. Similar arguments apply to negotiations over the constitution- making process—which may be part of the peace process as well. United Nations Security Council Resolution 1325 calls for women’s equal and full participation in peace processes. In many cases they have been excluded, even if they have been engaged in armed struggle. Many countries have other communities that tend to be excluded; in South Asia this is true of the Dalits. And just as article 25 of the International Covenant on Civil and Political Rights is now accepted as including the right to participate in constitution-making, so it should include, if possible, the right to be involved or at least consulted in designing that process.

Various factors may hamper the careful design of the process. Though people tend to understand that peace negotiations need careful planning—the chair will be carefully selected, as will the location, and even the seating will be considered—the same care may not be given to the design of the constitution-making process. Perhaps lawyers will take over and insist that it is a technical matter best left to them. Perhaps there will be a tendency to follow the same plan as the previous time—even though the constitution made by that process was flawed.

It may be helpful to reach a preliminary agreement on some basic principles that the constitution-making process must follow, and even on some of the elements of the new constitution—a topic to which we return later in this section.

The contents pages of this book—especially for part 3, on institutions and processes—should be a good indicator of the agenda that process designers should bear in mind. Broadly, that agenda includes:

Who is to decide—including who is to be able to have input into the discussion, even if not to make the final decisions?

Funding—how much will it cost, where is the money to come from, and who will be accountable?

Timing—is there to be a timetable, and if so is it to be rigid or open to change? Is it to be tight or to allow a lot of time?

Adoption—how is the new constitution to be passed into law—by the body that discusses and decides, by the president who usually signs laws, or by the approval of the people through a referendum? Are there to be any other prerequisites?

Technical quality—how is the technical quality of the document to be assured?

Openness—how will the public be involved, what parts of the official proceedings are to be open to the public, and what will be the role of the media?

Who designs?

Decisions on many of these issues may turn out to be highly political, and require a good deal of hard bargaining. To take the case of Fiji: the makeup of the commission that drew up the draft constitution was fiercely debated by the government and the main political parties. How many members should the commission have (especially to be considered representative)? Should all the members be nationals or should some be foreigners? Should the chair be a local or a foreigner and, if the latter, from what country? Again in Fiji, the terms of reference for constitutional commissions have been much debated. In 1987 the original terms of reference included “proposing to the Governor-General amendments which will guarantee indigenous Fijian political interests and in so doing bear in mind the best interests of other people in Fiji;” when the opposition forces (largely “other people”) objected, the italicized words became “with full regard to the interests of other people in Fiji.” And in 1995 the government wanted to minimize changes to the 1990 constitution, and wanted the terms of reference to reflect the priority of ethnic Fijian interests, while the opposition wanted a full review and fairness for all communities.

Design may be at least in part carried out by negotiation in a peace process. In some countries it has involved public consultation or some body with popular legitimacy. In Ecuador in the mid-1990s, unusually, one element in the design was referred to a nonbinding popular referendum: whether the constituent assembly delegates were to be directly elected in the usual way for parliaments, or elected by social movements.

Sequencing

In any participatory process, certain tasks must be performed, but different constitution-making processes have ordered some of these tasks differently. While the logical order of some events is obvious, there is room for different opinions about the sequence in which others should be carried out. The most important area of difference is about the stage at which a draft constitution should be prepared. The issue appears in two forms:

Should public consultation take place without there being any draft, or should the public be asked for its opinion on the basis of a draft or at least concrete proposals?

Should a constituent assembly begin its discussion on the basis of a draft?

The underlying issue is to what extent the voice of the people—whether through direct public consultation or through a constituent assembly—should be sought on the basis of concrete proposals, or more in the abstract.

Where would a draft come from if it were to come into being before the voice of the people was sought? There are three major possible answers: from one or more political parties, from a commission or committee, or from a single expert.

The major arguments in favor of “draft later” are that the existence of a draft is likely to inhibit free discussion, and that the draft tends to shape the views the public has of the assembly. Fears will be rather different if the alternative is having a draft put forward by political parties than if it is one put forward by an independent commission or committee, or if the alternative is a single technical expert’s draft. Are discussions going to be inhibited by the views of one political party, or by a political compromise reached in a committee, or even by the conservatism of an individual lawyer?

On the other hand, there is a fear that if public consultation takes place without any structure being given to the discussion by the existence of concrete proposals the people will flounder, not understanding the nature of a constitution and how they can contribute to its formation. Some will worry that the people will expect too much of the constitution. This argument itself perhaps reflects particular views of the appropriate scope of a constitution, and may be linked to the question of whether a constitution should contain economic, social, and cultural rights.

In Brazil the idea of the constituent assembly starting its work on the basis of a draft was firmly rejected because it would be a “dangerous instrument of control over the assembly.” But in Timor-Leste the dominant party in the assembly, Fretilin, was able to shape much of the discussion by ensuring that it was primarily based on its own proposed draft constitution.

In Fiji, Kenya, and Uganda, public consultation preceded the drawing up of a first draft. In South Africa the interim constitution was the outcome of interparty negotiation. Public consultation took place on the drafting of the final constitution, which drew heavily on the interim constitution. That interim document therefore to some extent served as a draft for discussion.

Box 2. The Kenyan process [2010] and the Bougainville process [2004]

The Kenyan process did not specify how long the first stage (preparing a draft) should take, but it did specify rigid limits for later stages. Consequently the Committee of Experts was supposed to respond to public comments and amend its draft in a twenty- one-day period that began on December 17 and continued through Christmas and New Year’s Day, when members and staff had already planned to be on holiday.

In Bougainville, major amendments to the Papua New Guinea constitution intended to give effect to the provisions of the Bougainville Peace Agreement 2001 were approved by the Papua New Guinea parliament in March 2002. The amendments did not come into operation, however, until Bougainville militias that had been involved in a complex secessionist conflict were certified by a United Nations observer mission as having completed agreed steps in the disposal of weapons. Only at that point (July 2003) could Bougainville take major steps provided for in the amended Papua New Guinea constitution toward adoption of a subnational constitution establishing the Autonomous Bougainville Government.